Duck Season

March 18, 2004

I had an opportunity to read Justice Scalia's memorandum concerning recusal in the Cheney energy task force case (No. 03-475). In declining to recuse himself from deciding the case, Justice Scalia relies on both historical/structural arguments and a normative argument.

The normative rationale is that we want to avoid Justices having to recuse themselves at the drop of a hat. There are bound to be many connections between Justices and Administration officials. Having standards for recusal that are too stringent will result in having too few cases decided by all nine Justices.

However, unlike many of the precedential cases cited by Justice Scalia, one of the issues at question in this case is whether Cheney acted in his personal interests when he was acting in his official capacity. The key reason that the public should learn who were the members of Cheney's energy task force is to determine whether or not the commission was impartial. Because of his ties to the energy industry, the American people have significant concerns about who advised Vice-President Cheney on energy policy.

Ultimately, the question is not whether Justice Scalia can impartially judge this case, but whether the hunting trip avoids the appearance of impropriety. What would a reasonable think about this situation?

Slate's Dahlia Lithwick: Justice Scalia's letter to the American people:

Before you get lost in his sea of detail, rebuttal, and historical example, it's worth considering what this missive really represents: This is the Supreme Court talking back to us—actually responding to two months of op-eds and cartoons and petitions. This memorandum is a shaky, echoey voice emerging from behind the wizard of Oz's curtain.

NPR's Nina Totenberg reports: Scalia Defends Cheney Trip, Recusal Decision

Scott Rosenberg, Salon.com: Justice is duck-hunt blind

The energy task force scandal itself hinges on the question of whether it's appropriate for the vice president to conduct the public's business as a private matter among clubby business chums. The Supreme Court must rule on that issue -- but here's Scalia saying the public should not be troubled that his own relationship with Cheney is exactly analogous to the relationships at issue in the energy task force dispute. Scalia just can't seem to get his inflated head around this; he seems to think that the public is worried that he and Cheney discussed details of the energy case while shooting ducks. Scalia's memo drips with contempt for both the public and the media --but we're not that stupid.

Sierra Club: Response to Justice Scalia's Denial of Recusal Motion in Cheney Case

Justice Scalia misses the point. There's a problem when a Justice and a litigant meet secretly at a private hunting retreat -- regardless of what happens behind closed doors. It is the appearance of secrecy and impropriety that creates the problem, and it clearly has caused a public outcry here. If Justice Scalia and Mr. Cheney had only been so forthcoming with the facts at the outset, the public might have responded differently and this might have taken a different course. Even in light of this newly disclosed information, the Sierra Club still believes that recusal would be appropriate under the applicable legal standard.

Late Show with David Letterman: Top Ten Signs Your Supreme Court Justice Is On The Take

Previously on BRR, Recuse Me While I Drag This Out.

Posted by Andrew Raff at March 18, 2004 10:00 PM